In re Fish

OPINION OF THE COURT

Levine, J.

On May 14, 1980, decedent, aged 62, while a patient at Syracuse Veterans’ Administration Hospital under treatment for rheumatoid arthritis, executed an instrument purporting to be his last will and testament. The will was drawn at the hospital by an attorney who met decedent for the first time on the day of execution, and was witnessed by the wife of decedent’s brother Roy and by a physician who was a medical resident at the hospital but had not treated decedent. The will left 60% of decedent’s estate to his sister Lorena, 22% to his brother Roy and divided the balance equally between his other six brothers and sisters. Decedent left an estate of some $107,000. This comprised the assets held in a fiduciary account by the Marine Midland Bank in Broome County, a successor committee for decedent.

The uncontested evidence established that decedent had suffered mental impairment as a result of combat duty in the United States Army during World War II in Africa. He was hospitalized in Veterans’ Administration Hospitals for this condition from 1943 to 1959. A committee to handle his finances was appointed pursuant to an ex parte application based upon incompetency in 1944, and continued to act as such until decedent’s death in 1984. Decedent lived with his mother from 1959 until she died in 1962. He lived for several months alone and then moved in with his sister Lorena, with whom he resided until his death. Lorena died before the jury trial of the instant will contest which was the result of objections filed by decedent’s remaining siblings, who had only received minor shares of his estate under the will.

Probate of decedent’s will was denied on the ground of his lack of testamentary capacity. This in turn was based upon the trial jury’s negative response to one of several questions submitted to it, namely, at the time of execution "was [decedent] aware of the nature, extent and condition of his property?” Petitioners contend that reversal is required because this finding was unsupported by the evidence and was incon*46sistent with the jury’s other findings, also in response to framed questions, that decedent (1) understood that he was making a will disposing of his property and the terms thereof, and (2) recalled the persons who were the natural object or objects of his bounty.

The decree denying probate should be affirmed. Surrogate’s Court’s submission to the jury, to which petitioners took no exception, was consistent with the settled law that testamentary capacity requires examination of three factors: " '(1) whether [the testator] understood the nature and consequences of executing a will; (2) whether [the testator] knew the nature and extent of the property [he] was disposing of; and (3) whether [the testator] knew those who would be considered the natural objects of [his] bounty and [his] relations with them’ ” (Matter of Kumstar, 66 NY2d 691, 692, quoting Matter of Slade, 106 AD2d 914, 915; see also, PJI 7:48). While a testator need not have precise knowledge of the size of his estate (see, Matter of Bush, 85 AD2d 887, 888), the authorities clearly hold that a testator’s lack of awareness of or ability to keep in mind without prompting the general nature and extent of one’s real and personal property requires denial of probate (see, Matter of Delmar, 243 NY 7, 14-15; Matter of Slade, supra, at 915-916; Matter of Flynn, 71 AD2d 891, 892).

Where there is conflicting evidence or the possibility of drawing conflicting inferences from undisputed evidence on this or any other issue determinative of testamentary capacity, the issue is one of fact for the jury (Matter of Kumstar, supra; Matter of Delmar, supra; Matter of Flynn, supra; see, Matter of Morrison, 270 App Div 552, 554, affd 296 NY 652). A review of the record reveals that such is the case here. There was competent evidence that decedent suffered "shell shock” during the war and as a result had been hospitalized for his continued mental impairment for the next 16 years. A sister, brother and brother-in-law who had regular, periodic contact with decedent throughout the years after his discharge from the hospital, including the several years immediately preceding and subsequent to his execution of the will, described decedent as docile, uncommunicative and childlike in his behavior. Except for a brief period following his mother’s death, decedent never lived alone. Again, except for one short occasion, decedent never held employment. Other than furnishing decedent with pocket money of $50 twice a month, the bank acting as his committee entirely handled decedent’s *47financial affairs, disbursing directly for the payment of all but decedent’s minor expenditures. The physician who treated decedent for arthritis on a monthly basis from some 2 Vi months after the execution of the will until his death some four years later, rendered an opinion that decedent suffered throughout the period from severe mental impairment such as to require continued supervision and to render him totally unable to handle his own financial affairs. A psychiatrist who had not seen decedent, but who testified on the basis of a hypothetical question which accurately described the testimony concerning decedent’s lengthy hospitalization for mental problems stemming from his wartime experiences and his behavior and demeanor thereafter, opined that decedent was suffering from chronic schizophrenia.

From the foregoing evidence, the jury certainly could rationally have concluded that decedent did not know and was incapable of holding in his mind the nature, extent and condition of his property, despite the fact that there was conflicting evidence which could have supported the opposite conclusion. This being so, the determination by the triers of fact should not be disturbed (see, Matter of Morrison, supra, at 555).

We are likewise unpersuaded that any fatal inconsistency exists between the jury finding challenged here and the jury’s findings that petitioners satisfied their burden of proof on the two other factors determinative of testamentary capacity. Each factor is a discrete element of competency to make a will, and the jury’s verdict was entirely consistent with the quantum of petitioners’ proof as to each factor.